Nicholas Stewart

On May 17, 2008, Capt. Nicholas Stewart, a seven-year veteran of the U.S. Marine Corps, attended a party in Fairfax, Virginia, to celebrate a woman friend’s graduation from George Mason University’s MBA program.

Stewart, 29, was acquainted with the 26-year-old woman—they had been sexually intimate in the past. The woman went to bed around 10:30 p.m. after having a considerable amount to drink. When she woke up in the morning, Stewart was in bed with her and both were nude.

She later told military authorities that Stewart asked her if she was taking birth control because he was concerned that they had not used a condom. When the woman’s brother checked on them around 7 or 8 a.m., she gave no sign of alarm. The woman and Stewart joined others in the living room not long after and, according to her brother, "neither of them acted odd or like anything was wrong."

Two days later, the woman told Stewart that she was angry about being the "girl of choice" and felt used. Stewart was upset because he had cheated on his girlfriend.

A month later, the woman’s brother told their parents that Stewart had sexually assaulted the woman. The parents contacted the Marine Corps, which opened an investigation. The investigating officer recommended that no action be taken.

However, on December 12, 2008, Stewart was charged with sexual assault. The charge said that the woman was "substantially incapacitated or substantially incapable of declining participation" in the sexual act.

Stewart contended the sex was consensual at his court-martial in September 2009. Prior to the trial, the military judge asked for evidence from the defense so that he could make a determination on whether a consent defense was valid. The defense provided the testimony of the victim during the investigation and Stewart’s sworn account of the night in question.

The judge ruled that the defense had proved by a preponderance of the evidence that it had met its burden for a consent defense. The defense believed the evidence would be part of the court-martial proceedings because the judge noted that although the ruling was taking place prior to trial, "I'm stuck with the state of evidence as it comes in. Once I make a ruling as to preponderance, that's it. It's coming in."

At the trial, the victim testified that she had very little memory of the sexual activity and no recollection of giving consent—therefore, she must not have consented.

Stewart did not testify, choosing instead to rely upon his sworn statement, which had been submitted to the judge. However, when Stewart’s lawyer brought up the evidence of consent during his closing argument, the prosecution objected, saying the evidence had been excluded. The judge sustained the objection, saying the evidence he had received to reach a decision on the consent issue would not be given to the jury.

The charge against Stewart was split into two separate counts—one alleging sexual assault involving substantial incapacitation the other alleging sexual assault involving a partner substantially incapable of declining participation.

Stewart was convicted on September 17, 2009 of sexual assault involving a partner substantially incapable of declining participation. He was acquitted of sexual assault involving substantial incapacitation. He was sentenced to two years in prison and dismissed from the Marine Corps. He went to prison the following day and was released on September 23, 2010.

On appeal, Stewart contended that the trial judge erred in failing to allow the jury to hear Stewart’s evidence of consent and that the verdict was inconsistent because he was found guilty in one count, but not guilty in another count that involved the same conduct.

On March 6, 2012, the United States Court of Appeals for the Armed Forces vacated the conviction and dismissed the case. The court ruled that it was legally inconsistent for Stewart to be found guilty of one charge but not the other since they were essentially the same. The court did not reach a decision on the issue of the evidence of consent.

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